GARWE v ZIMIND PUBLISHERS (PVT) LTD & ORS 2007 (2) ZLR 207 (H)

Flynote

Damages — defamation — assessment — aggravating factors — bad reputation of plaintiff — relevance of — what must be shown — extent of publication — effect of — status of plaintiff — senior judge being defamed in his professional capacity — lack of apology or retraction — inflation — effect of — future inflation may not be considered

Delict — defamation — what is defamatory — ordinary meaning of words used — reasonable reader's understanding of words used — context in which words are used — defences — qualified privilege — variance between true facts and what was reported — inference of improper motive — defence failing

Headnote

The plaintiff was Judge President of the High Court when he presided at the trial for treason of Morgan Tsvangirai, the leader of the main opposition party in Zimbabwe. The trial was lengthy, spread over eighteen weeks, and at its conclusion the plaintiff indicated that judgment would be delivered on a stated date some five months later. When that date came, the judgment was postponed to a future date. The first defendant's newspaper published an article in which it stated that the assessors in the trial had "blocked" the plaintiff from delivering his judgment before they could review transcripts of the trial proceedings. The plaintiff wrote to the editors, explaining the procedures involved in criminal trials and asking for a retraction. The defendants denied that the statement was defamatory or that they had suggested that the plaintiff had already prepared his judgment.

The plaintiff issued summons for defamation. The amount claimed was revised upwards on the date the matter came for trial, on the grounds of the rate of inflation affecting the country. He claimed that the words were defamatory because an ordinary reader would understand them to mean that he had improperly reached a decision without consulting his assessors and would have delivered a single man's verdict unless the assessors had stopped him. Evidence was led of articles, published outside the country, which directly alleged that the plaintiff had decided on a verdict without consulting the assessors, although the plaintiff denied any knowledge of such articles. These articles also claimed that the assessors had stopped the judge from delivering his judgment. The defence denied that the article was defamatory or that substantial damages were justified. The defence also raised the defences of qualified privilege, justification, fair comment and lack of animus injuriandi.

Held, that the ordinary meaning of words is determined by looking at the context in which they were uttered. The judge must decide both whether the words in their ordinary significance are capable of bearing a defamatory meaning and whether a reasonable reader would regard the words in a defamatory light. The reasonable reader is a person who gives a reasonable meaning to the words used, within the context of the document as a whole. In casu, the context included the environment that led to the investigations into the matter being carried out by the newspaper. Held, further, that in the context in which the words were published, the ordinary reader would have understood the word "blocked" by its ordinary dictionary meanings of "stopped" or "prevented. To expect the reader, even after reading the entire article, to understand the word "blocked" to mean "delayed" would be to expect too much from him. Such a reader would not have engaged in an exercise to subtly, elaborately or intellectually analyse the word in order to come up with a meaning different from the one ordinarily assigned to it. Similarly, the ordinary reader who reads about anything to do with the courts or with a judge would understand the word "judgment" to mean the verdict or the judge's decision on the matter. The ordinary reader would have understood that the assessors had stopped the plaintiff from passing his (single man's) prepared judgment in the criminal case and that the plaintiff wished to do this improperly, if not corruptly, without consulting the assessors.

Held, further, that with regard to the defence of qualified privilege, the defendants relied on the situation relating to the discharge of a duty to a person who has a corresponding right to receive the information. While the criminal trial and its outcome were matters of public importance, the variance between what the defendants established to be the true facts concerning the postponement of the judgment, and what they went on to report, was difficult to explain except in terms of their being driven by an improper motive. They thus, forfeited their right to the protection of the defence of qualified privilege.

Held, further, that with regard to the defence of justification, what the defendants wrote was untrue. The language used in the statement complained of went beyond mere exaggeration: the defendants, having established the truth about the circumstances surrounding the postponement of the judgment, went on to publish statements that directly contradicted such truth.

Held, further, that for the defence of fair comment to succeed, the allegation in question must be a comment (opinion), it must be fair, the factual allegations on which the comment is made must be true and the comment must be on a matter of public interest. The words complained of could not be said to be a correct interpretation of the facts. Even allowing for the exaggeration that normally characterises the reporting of facts or events in newspaper articles, the words exceeded the limits of exaggeration, and so could hardly be said to be fair comment. The defendants' use of words such as "blocked" and "demanded", when they knew very well that this was not what had happened, smacked of dishonesty and malice.

Held, further, that animus injuriandi is a subjective intention on the part of an individual as opposed to the mass media to defame or injure the reputation of the plaintiff. This intention covers dolus directus, dolus indirectus and dolus eventualis. The evidence showed that the defendants, in writing and publishing the words complained of, were motivated by dolus directus as well as the other forms of dolus. The two defendants reduced what were essentially rumours doing the rounds concerning the postponement of the judgment, to writing, and published them in a local newspaper. They must have foreseen the eventual harm to the plaintiff of the statement complained of.

Held, further, with regard to "punitive" damages, factors aggravating the defendants' conduct may serve to increase the amount awarded to the plaintiff as compensation, either to vindicate his reputation or to act as a solatium. While evidence of the general bad reputation of a plaintiff may be pleaded in mitigation of damages, evidence that other people had made similar defamatory statements about the plaintiff is not admissible to show that the plaintiff already had a tarnished reputation. Although not a large number of copies of the newspaper were sold, the extent of the publication of the newspaper included internet access and therefore the distribution of the article complained of was fairly wide. The defamation was a serious one: given the plaintiff's position as the most senior High Court judge at the time, to suggest that he would have attempted to so depart from established procedure as to wish to improperly exclude the assessors in the process of formulating and handing down judgment in a case that they had heard together was highly damaging to his professional integrity. To the extent that the defendants' subsequent statement might be termed a retraction of sorts, it clearly was neither a prompt (they refused to retract when asked to do so by the plaintiff before the matter was taken to court) nor was it as prominently displayed as was the article complained of. The timing and brevity of the statement suggested reluctance on the part of the defendants to make it, and also that it was grudgingly not spontaneously made. Held, further, that the court could take judicial notice of the hyperinflationary environment obtaining in Zimbabwe at the time of the publication and at the time of the trial. However, it could not base its assessment on speculation as to the rate at which inflation might continue to rise, nor could it do so on the basis of whether it would rise at all. There was no basis for taking future inflation into account.